Law Offices of Michael T. Nolan, Jr.

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Ankle Bracelet Law for Sex Offenders Not Retroactive

A New Jersey Appeals Court recently ruled that a 2007 law requiring electronic monitoring and supervision of sex offenders is punitive in nature, and therefore cannot be applied retroactively.  In Riley v. Parole Board, the Appellate Division of our State Superior Court held that retroactive application of the law violates the United States Constitution's ex post facto clause (that is, a law that punishes certain conduct cannot be applied to offenses committed prior to  that law's enactment).  The Court held that the law could be applied prospectively only (i.e., going forward, to sex offense convictions occurring after the law went into effect in 2007).

The Court held that a statute affecting a person convicted of a crime violates the ex post facto clause if its adverse effects are so punitive in nature, that the statute is no longer civil and regulatory in nature, even if that was the stated intention of the Leglislature.  The Riley case involved an individual who was convicted of attempted sexual assault in 1986, and finished serving his sentence at Avenel (the Adult Diagnostic and Treatment Center for repetitive and compulsive sex offenders) in early 2009.  Later that year, the State classified him as a high risk offender for purposes of Megan's Law, and ordered him to wear a GPS device on his ankle 24 hours a day.  The Court rejected the State's argument that this requirement was regulatory and nonpunitive, and determined that the ankle bracelet law was so punitive that it could only be applied to individuals who committed sexual offenses after the law's enactment.

In deciding Riley, the Appellate Division followed a fundamental constitutional provision that someone cannot be subject to punishment retroactively.  This case is likely to have major ramifications statewide, including sex offense cases in Monmouth and Ocean Counties.

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